Barnaby Hone sets out some key considerations when it comes to ensuring confiscation orders are enforced.
Gaining a Confiscation Order is often seen to be the final hurdle. It increasingly is not: enforcement of the order is. This is a problem that affects all confiscation orders, in all jurisdictions, and has drawn the attention of the National Audit Office here in England and Wales.
This problem usually raises itself in two manners. First, where the defendant refuses to pay the order outright. Though default sentences can be evoked, this often does not lead to the order being fulfilled. Second, when the defendant has persuaded the court that they should make a minimal payment plan, which means the order will never be fulfilled in any real way, while the defendant retains the veneer of compliance.
The problem is especially acute with local authorities, where there is limited resource. It is usually decided to leave enforcement to the courts (Magistrates Courts), who have the responsibility to enforce the orders. Often the orders will not be prioritised, because the court do not have the full facts of the matter and will not focus on the case. Leaving it to the courts is the easy course of action, but if the order is to be enforced, it is often not the best course of action.
It is worth getting involved to make sure the order is correctly enforced. Below I set out a number of actions you can pursue to ensure this takes place.
Points to consider
Keep records and monitor fulfilment of the orders
Recording what orders have been made and whether they have been fulfilled may seem simple, but it is not always done. This should be the bed rock of an enforcement strategy. It can be done through one specified officer with a spreadsheet, who is the point of contact for HMCTS.
At its most basic level, it will allow you to assess which orders have been fulfilled and which have not. It is also important to assess what assets have been realised so you can compare it with the schedule of assets and the knowledge you (or the team) have of the case.
This means that you can assess where it is best to put your resources. Using your knowledge of the cases you will know which ones should have been enforced easily and which ones (particularly ones with hidden assets), can either be seen as long-term projects or ones where there is little likelihood of success.
Attend the hearing
This might seem another simple step, but attending the hearings and putting forward clear representations to the court will assist. Though the enforcement of confiscation orders rests with the courts, they do not have personal knowledge of the cases, apart from what little information is shared with them in the court file, and will often find it hard to sort the wheat from the chaff.
Attendance by the case lawyer, or counsel properly instructed, will give emphasis to the need to enforcement and can put the case in context. For instance, if a defendant is alleging there is an issue with the ownership of an asset, it might be very easy to refute that if you have experience of the case and can make it clear what the Judge making the Order found. An attending prosecutor should not be cautious about asking for a default sentence to be enforced if the time period has elapsed and there is little movement towards the order being paid. This is one of the key tools a prosecutor has to enforce compliance.
This action should be combined with steps an FI can take as set out below. It is useful for an FI to be in court as well as they can give evidence if needed, or just supply clarity to the positon of the defendant at the time of the order and now. This will provide the court with further context.
Further financial investigations
Further financial investigations by FI’s are useful in two areas, in the right cases. First to see where the money has gone: if there has been dispersing of funds previously designated as available assets it is very useful to find out where they have gone and to highlight this to the court.
Second, FI’s can find funds that previously have not been declared or have been created since the order was put in place. This serves two purposes. First, to tell the court what the actual position is in relation to the defendant’s funds. This will usually be very different from what the defendant has already claimed. Second, it could be the basis for an application to increase the available amount. Both of these points will put pressure on the defendant to fulfil the order.
As we know restraint orders are a very good tool in ensuring that assets are maintained so that they can be realised. They can also be a tool in putting pressure on a defendant, especially if a defendant is using a bank account and spending the money which could be used to fulfil the order. Restraining the account will put pressure on the defendant to use the funds to fulfil the order rather than for personal means. This tactic can be used in respect of any asset which is being dispersed and not used to fulfil the order.
Enforcement receivers are an expensive option but should be considered in cases where there is a large amount outstanding and it is made up of one or two substantial assets, such as a business or a large property. This will take the enforcement out of the courts hands but it can be costly. The costs should be considered and estimates gathered from the firms in question before the application is made. This is probably only an option in bigger cases, but often the threat of an enforcement receiver will spur a defendant into action.
Checklist and conclusion
The following is a summary of points you should consider taking to assist with the efficient enforcement of confiscation orders:
a) Establish a central point of monitoring the fulfilment of orders;
b) Appear at the enforcement hearings and make representations to the court;
c) Carry out further financial investigation into the means of the defendant;
d) Consider applying for a restraint order;
e) Consider appointing an enforcement receiver.
Though I realise some of the above information might be akin to teaching grandmothers to suck eggs, in my experience the simple steps can be the most effective. These steps, though sometimes time consuming, can have a real effect in recovering assets rather than leaving you with an order worth a lot on paper and nothing practically.